Proper consideration of applications under Order 41 Rule 27 CPC and Order 6 Rule 17 CPC is crucial, and the timing and grounds for filing such applications must align with the statutory provisions and the requirements of the appellate stage.

U.C. Dhyani, J.

1. By means of present writ petition, the petitioner seeks to quash the order dated 10.08.2017, passed by District Judge, Nainital, in rent control appeal no. 07 of 2016, Smt. Baijayanti Joshi vs Deepak Chandra Gururani. A further prayer has been made to allow the application of the tenant / petitioner filed under Order 41 Rule 27 CPC, as also the application filed under Order 6 Rule 17 CPC.

2. Purportedly in deference to paras no. 13 and 14 of the judgment dated 31.05.2017, passed by this Court in Writ Petition no. 1246 (M/S) of 2017, Smt. Baijayanti Joshi vs Deepak Chandra Gururani, petitioner filed application under Order 41 Rule 27 CPC, as also application under Order 6 Rule 17 CPC before the lower appellate authority. The said paras are reproduced here-in-under:

“13. Since this Court has mentioned above that the proceedings under the U.P. Act no. 13 of 1972, are decided on the basis of affidavit, counter affidavit, rejoinder affidavit etc., therefore, it will be in the fitness of things and in the interest of justice, if a direction is given to the Appellate Authority to consider entertaining the affidavit of the tenant/petitioner to substantiate her statement on the question whether the construction is old one or new one? Needless to say that if such affidavit is entertained and taken on record, the respondent will also be given opportunity to rebut the same. Thereafter, learned Appellate Authority shall proceed to decide rent control appeal in accordance with law.

14. It is made clear that this Court has not given a finding as to whether the construction is new one or old one and the provisions of U.P. Act no. 13 of 2017 are applicable or not to the building in question.”

3. Application under Order 41 Rule 27 CPC was filed on behalf of the applicant/petitioner (Annexure 14 to the writ petition), which was dismissed by the Appellate Authority, vide order dated 10.08.2017. Application under Order 6 Rule 17 CPC was also filed, which met the same fate. Said order is under challenge in present writ petition.

4. Learned counsel for the landlord respondent submitted that Ibrahim Uddin’s case (infra) is not applicable in the instant case, in view of following observation of the Hon’ble Apex Court made in para 48 of said judgment. Said para is reproduced here-in-below for convenience:

“48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

5. It is, therefore, the contention of learned counsel for the landlord respondent that application under Order 41 Rule 27 CPC has been filed before the Appellate Authority at a belated stage.

6. Secondly, it is contended that the reasons assigned for filing such an application are also not within the four corners of Order 47 Rule 27 CPC, inasmuch as the tenant/appellant/petitioner has to show that despite due diligence he could not produce the evidence, as the evidence was not within his knowledge when decree was passed against him.

7. It is the subm